Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    816/12    

 

 

CLAIMANT:                                Christian Laverty

 

RESPONDENT:                          GB Poultry Ltd

 

 

 

DECISION ON A REVIEW HEARING

 

The unanimous decision of the tribunal is that the respondent’s application for review is dismissed.

 

 

Constitution of Tribunal:

 

Chairman (Sitting alone):           Ms P Sheils

 

 

Appearances:

 

The claimant appeared and was represented by Mr J Anderson, instructed by Lynette Carson of Hamilton and Thompson Solicitors.

 

The respondent appeared and was represented by Mr J Edwards (non-legal) representative.

 

 

 

1.       The Tribunal heard submissions from both parties in relation to the respondent’s application for a review of the decision refusing to accept the respondent response.

 

2.       The claimant lodged a claim form on 9 May 2012 to the Industrial Tribunal alleging unfair dismissal by the respondent.  A copy of that claim form was sent to the respondent by the claimant’s solicitor on a date date after that and by the Office on 18 May 2012.

 

3.       In the correspondence from the Office of 18 May 2012, the respondent were advised that the claimant’s claim had been accepted, that if they wished to respond to the claim they had 28 days from the date of that letter to do so.

 

4.       The letter from the Office also enclosed a pack entitled “Responding to a claim to an Industrial Tribunal” which in itself included information about completing a response form, enclosed a blank pro forma response (ET3) and gave an outline of the procedures of the Industrial Tribunal.  This letter urged the respondent to read the information carefully.

5.       The letter from the Office also added that if the response had not been received by 18 June 2012, and the respondent had not applied to have the 28 day time-limit extended, that the respondent would not be entitled to resist the claim.

 

6.       A late response was submitted on 27 June 2012.  This late response was rejected on the basis that it had been received out with the proper 28 day time-limit and no extension had been applied for.

 

7.       By letter dated 4 July 2012, the respondent were advised of this decision and were also advised that they would not be entitled to take any further part in the proceedings except to make an application under Rule 35 (Preliminary consideration of application for review).  A copy of this correspondence was forwarded to the claimant’s solicitor.

 

8.       The respondent made no such application to review the decision rejecting their late response (prior to the hearing of this case on 18 September 2012).

 

9.       Subsequently, this case was listed for a full hearing and both parties were advised that the case would be heard 4 September 2012.  In the interim, consideration was given to the issue of a default judgment in absence of the response but this was rejected on the basis that the case had already been listed for hearing.

 

10.     At the hearing on 18 September, the respondent were advised that, in the absence of a response, they could take no further part in proceedings.  At this stage, the respondent indicated that it was their intention to seek to review the decision to reject their response.

 

11.     The respondent were directed to make any such application within 14 days of 18 September and on or before 2 October 2012.  It was agreed that a copy of this application should be forwarded to the claimant’s Solicitors on or before that date.

 

12.     By letter dated 27 September 2012, the respondent had tried to review the decision to reject the response.  Respondent did not forward a copy of this application to the claimant’s Solicitors as directed.

 

13.     The respondent’s grounds for the application review the decision rejecting their response was that the late submittal of that response was due to a combination of a number of factors, namely:-

 

          (1)      the maternity leave of the key employee;

 

          (2)      an administrative bungle;

 

          (3)      the difficulties in trying to run an extremely large business of over 30 employees while short-staffed during a holiday period during very trying financial times; and

 

          (4)      the belief that the claim was so spurious and ridiculous that it should never have come before a Tribunal.

 

14.     The respondent also urged the Tribunal to consider this application in light of the following:-

 

          (1)      that justice be done;

 

          (2)      that justice be seen to be done;

 

          (3)      that a late application does not change the facts of the case;

 

          (4)      that the seriousness of the allegations against the respondent and the management were such that the respondent believed these to be extremely malicious;

 

          (5)      and the behaviour of Mr Laverty prior to his leaving his employment.

 

15.     The respondent’s representative addressed these issues as set out in their letter of 27 September 2012 and expanded on some of these at the hearing.

 

 

SUBMISSIONS OF THE RESPONDENT

 

16.     (1)      Maternity leave of key worker

 

                    Mr Edwards stated that the key worker in question was Mr Bell’s niece, Shauna Smith, who was on maternity leave between the beginning of January 2012 and July 2012.  Mr Edwards stated that Ms Smith had only come in and out of work during that period on a now and again basis during that period and that this was the reason the filing of the response had been overlooked.

 

          (2)      Administrative Bungle

 

                    Mostly related to the first point, Mr Edwards second submission was that in the absence of Miss Smith he had been contacted by the respondent and engaged to deal with the matter, but Mr Bell himself had dealt with some aspects of the matter and that some of the other directors had also been engaged in the matter.

 

          (3)      Extremely large concern (size of organisation)

 

                    Mr Edwards referred to this point, but did not expand on it and in particular made no submissions in relation to the actual size of the respondent’s firm, the shortage of staff, the particular holiday period to which he referred and how any trying financial times impacted on the respondent’s failure to present a response within the proper time-limit.  Justice should be done and seen to be done. 

 

17.     Mr Edwards submitted that Mr Bell’s recollections of the facts were crucial to the proper hearing of this case, that the late presentation of the response would not change the facts of the case.  He submitted that Mr Bell should be given the opportunity to present his side of the story.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

 

18.     (1)      Maternity leave of key worker

 

                    Mr Anderson stated that his instructions were that a Mr Steven Wham had taken over Miss Smith’s work in her absence.  The Tribunal noted that this fact was not disputed.

 

          (2)      Administrative bungle

 

                    Mr Anderson submitted that the claimant’s solicitor had received correspondence from Mr Bell repudiating the claimant’s claim and allegations and that Mr Bell in turn had made serious allegations against the claimant.  On this basis, Mr Anderson stated that it was clear that Mr Bell had become fully engaged with the detail of the claim was no basis for saying that there had been an administrative bungle leading to the failure to present the response within the time limit.

 

          (3)      Size of business

 

                    For his part Mr Anderson stated that the Company was not extremely large (as only being above thirty employees) and that the respondent had sufficient resources to deal with the issue.

 

          (4)      Spurious and Ridiculous Claim

 

                    Mr Anderson referred to correspondence from the respondent to the claimant’s solicitor.  This correspondent was not disputed.  The content of this correspondence had been an extreme concern to the claimant’s Solicitor.  It made numerous allegations against the claimant which were of a serious criminal nature none of which had ever been investigated by the respondent or referred to the Police.

 

                    Mr Anderson submitted that the claimant’s solicitor had considered this correspondence had amounted to threatening behaviour, designed to ensure that the claimant would not pursue his case any further.

 

                    Mr Anderson also submitted that the submissions made in this application to review appeared to indicate that the respondent was now making the case that the claimant had simply not returned to work.  Mr Anderson submitted that this was at odds with the concessions made by Mr Edwards to the Tribunal at the first hearing.

 

                    Mr Anderson also submitted that the application was without merit and that in any event no statutory procedure had been followed, no warnings had been given and that the application to review should be denied on this basis alone.

 

 

THE TRIBUNAL’S CONCLUSIONS

 

19.     Maternity leave of key worker

 

          The Tribunal noted that it had not been disputed that another person had been appointed to carry out Miss Smith’s work in her absence.  The Tribunal also noted that the respondent accepted that no other aspect of this key workers work had been overlooked or forgotten during her maternity period.  The Tribunal also noted that Miss Smith did keep in touch with her work during her maternity period.

 

20.     In light of this the Tribunal concluded that the maternity leave of Miss Smith had not been a reason or factor in the respondent’s failure to lodge the response within the appropriate time-limit.

 

21.     Administrative bungle

 

          It was clear to the Tribunal that there was an early repudiation of the allegations set out in the claim form.  This was demonstrated by the decision to call Mr Edwards in to advise on the case.  It is also evidenced by the steps Mr Edwards took which included his having taken staff witnesses statements and conducting an investigation.

 

          The Tribunal also noted that there were discussions between Mr Edward, Mr Bell and other directors in relation to the case and noted the fact that Mr Bell himself wrote to the claimant’s Solicitor repudiating the claim. 

 

          The Tribunal noted that a great deal of activity was carried out by a number of people in relation to this claim but none of this evidence explained why the response form had not been submitted within the appropriate time-limit.

 

22.     Extremely large firm

 

          The Tribunal noted that the respondent firm was stated as being over 30 employees but that no further information was given in relation to its size.  The Tribunal concluded that the firm was therefore not extremely large.

 

23.     The Tribunal also noted that no further details were given of any staff shortage or holiday period by how trying financial circumstances had impacted on the respondent’s failure to present a response within a proper period of time.  The Tribunal noted that, to the contrary, Mr Edwards had been brought in to advise the firm commenced investigation, that Miss Smith’s work had been carried out by someone else in her absence and on the basis of this the Tribunal concluded that the firm had sufficient resources to deal with this matter.

 

24.     Spurious and ridiculous claim

 

          The Tribunal noted the submissions made by Mr Edwards to the extent of the steps taken by the respondent company on receipt of the claim form.  The Tribunal noted that Mr Edwards stated that the respondent had appointed him, that he had conducted an investigation and had interviewed a number of staff employees and taken their statements.  None of this suggested the respondent firm believed the claim to be spurious or ridiculous.

25.     The Tribunal concluded that this evidence indicated the respondent took the claim very seriously indeed and set about defending the claim robustly.

 

26.     The Tribunal concluded that the application should be refused.  This is on the basis that the Tribunal did not accept any of the respondent’s grounds as proper explanation for their failure to present response within the proper time-limit and that there was no reasonable basis in this case to exercise its discretion to allow this application to succeed.

 

27.     The Tribunal concluded that this respondent had had been given that opportunity and had failed avail of it and had failed to show why they had not presented their response within a proper period of time.

 

28.     For these reasons, the Tribunal rejects the respondent’s application to review the decision rejecting the response.

 

29.     Accordingly, the Tribunal directs that the respondent will take no further part in the hearing of this case.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:       20 November 2012, Belfast.

 

Date decision recorded in register and issued to parties: